Guaranteeing Republics to the Confederate States: A Guarantee Clause Justification for Lincoln’s Response to Civil War

Article by: Michael Morea

2014 PEPP. L. REV. 59 (2014)

There has been substantial debate over the constitutionality of Lincoln’s response to secession and his role as executive during the Civil War. While many historians and legal experts accept the theory that Lincoln, as president, was vested by Article II with power to act decisively in suppressing secession in an effort to preserve the Union, there is branch of libertarian thought that remains unconvinced that his tactics were constitutional. For example, three-time presidential candidate Ron Paul, in an interview with “Meet the Press,” stated that Lincoln should not have gone to war, arguing that Lincoln’s actions were motivated by the desire to enhance the federal government’s power “and get rid of the original intent of the republic.” Likewise, economics professor Thomas DiLorenzo has penned two books in a bid to “unmask” Lincoln as an unconstitutional executive and has written pieces on numerous libertarian websites defending the South’s right to secede.

This article will not rehash these debates but will introduce a novel constitutional argument to support his initial actions, appealing to Article IV’s Guarantee Clause, which explains that the federal government shall “guarantee to every State in this Union a Republican Form of Government and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” While there has been considerable discussion of the Clause, primarily focused on justiciability issues, it has never been drawn upon in the context of the early stages of the Civil War itself. This paper will attempt to lay out a constitutional foundation for its utilization by defining what a “republican form of government” is and then applying that to the factual scenario present in 1861.